KA-2024-000232 - [2025] EWHC 1681 (KB)

This ground takes issue with the first of the Judge’s reasons for declining to strike out Point 23, namely his finding that the original Points of Dispute would have allowed there to have been a “fairly broad-brush assessment in any event”: see [15] of his judgment at [41] above.

The Appellant contends that the Judge misdirected himself in applying a test of whether or not a broad-brush assessment could be carried out: it would be inappropriate to carry out a broad-brush assessment in “detailed” assessment proceedings; and a broad-brush assessment could not have been carried out here in any event.

I cannot accept this submission, primarily because, in fact, the Judge accepted that it would be inappropriate to carry out the detailed assessment on a broad-brush basis. He recognised that the process is called a “detailed” assessment because “it is the parties’ right – in particular the paying party’s right - to descend into whatever level of detail they want” and if the parties wish to deal with the assessment on a “line-by-line approach”, they can: see [20] of his judgment at [42] above. He reminded himself of the observation in O’Sullivan to the effect that the process needs to be fair such that for him to merely “come up with a figure” would not be appropriate: see [28]-[29] of his judgment at [44] above. He did not anticipate the remaining time on 6 August 2024 being used for the kind of “on the hoof” assessment described in Ainsworth at [43]-[44]: he expressly recognised at [25] (see at [44] above) that it would be “unfair” to require counsel for the Appellant to respond to Point 23 at the hearing. Rather, his focus was on whether to adjourn the case to allow the Appellant more time to consider how to respond to the annotated schedule.

I consider that what the Judge was saying at [15] was that the Appellant had been provided with sufficient information in the original Point 23 to understand, broadly, what the case against him was. He was not saying at [15] that Point 23 complied with paragraph 8.2(b) or Ainsworth.

Further, I accept Mr Lyons’ submission that the fact that the “fairly broad-brush assessment” described by the Judge was possible is clear from the following: (i) the Appellant had been able to make a broad proposal of a number of hours in his Reply to Point 23; (ii) Bundle 2 had been prepared in such a way as to anticipate the points that would emerge from such an approach; and (iii) when the matter came back on for hearing before the Judge, the Appellant agreed to a broad-brush approach in the form of the “coffee break” option referred to at [47] above.

The Judge also observed that the types of points raised in the annotated schedule were all ones that would be “fairly obvious” to any costs practitioner, and indeed would have been the types of points that would have occurred to him without reading any Points of Dispute at all: see [18] of his judgment at [42] above.

I therefore do not consider that the Judge misdirected himself in the way alleged in Ground 2 and so dismiss it.